Tuesday, 26 May 2015

Open letter to UK MPs: Ensuring democratic scrutiny of UK surveillance law changes

Steve Peers

Due to my concern about inadequate democratic scrutiny of changes to UK law (often linked to EU law) affecting privacy rights, I am one of the signatories to today's letter to MPs on this issue, published in the Guardian and elsewhere. Thanks to Andrew Murray and Paul Bernal for taking this initiative.

An
open letter to all members of the House of Commons,

Dear
Parliamentarian,

Ensuring the Rule of Law and the democratic
process is respected as UK surveillance law is revised

Actions Taken Under the Previous Government

During
the past two years, the United Kingdom’s surveillance laws and policies have
come under scrutiny as the increasingly expansive and intrusive powers of the
state have been revealed and questioned in the media. Such introspection is
healthy for any democracy. However, despite a need for transparency in all
areas of lawmaking, and in particular in areas of controversy, the previous Government
repeatedly resisted calls for an open and transparent assessment and critique
of UK surveillance powers. Instead, in response to legal challenges, it extended
the powers of the state in the guise of draft Codes of Practice and “clarifying
amendments.” As we welcome a new Government we expect another round of
revisions to UK surveillance laws, with the likelihood that the Queen’s Speech
will signal a revival of the Communications Data Bill. At this time we call on
the new Government, and the members of the House, to ensure that any changes in
the law, and especially any expansions of power, are fully and transparently
vetted by Parliament, and open to consultation from the public and all relevant
stakeholders.

Last
year, in response to the introduction of the Data Retention and Investigatory
Powers Bill (“DRIP”), a number of leading academics in the field – including
many of the signatories to this letter – called for full and proper
parliamentary scrutiny of the Bill to ensure Parliamentarians were not misled
as to what powers it truly contained. Our concern emanated from the Home
Secretary’s attempt to characterize the Bill, which substantially expanded
investigatory powers, as merely a re-affirmation of the pre-existing data
retention regime.[1]

Since
that letter was written, it has become apparent that the introduction of the
DRIP Bill was not the only time an expansion of surveillance powers was
presented in a way seemingly designed to stifle robust democratic
consideration. In February 2015, the Home Office published the draft Equipment
Interference Code of Practice.[2]
The draft Code was the first time the intelligence services openly sought
specific authorisation to hack computers both within and outside the UK.
Hacking is a much more intrusive form of surveillance than any previously
authorised by Parliament. It also threatens the security of all internet
services as the tools intelligence services use to hack can create or maintain
security vulnerabilities that may be used by criminals to commit criminal acts
and other governments to invade our privacy. The Government, though, sought to
authorise its hacking, not through primary legislation and full Parliamentary
consideration, but via a Code of Practice.

The
previous Government also introduced an amendment via the Serious Crimes Act
2015, described in the explanatory notes to the Bill as a ‘clarifying
amendment’.[3]
The amendment effectively exempts the police and intelligence services from
criminal liability for hacking. This has had an immediate impact on the ongoing
litigation of several organisations who are suing the Government based in part
on the law amended, the Computer Misuse Act 1990.[4]

The Way Ahead

The
new Conservative Government has announced its intention to propose new
surveillance powers through a resurrection of the Communications Data Bill.
This will require internet and mobile phone companies to keep records of customers’
browsing activity, social media use, emails, voice calls, online gaming and
text messages for a year, and to make that information available to the
government and security services. We also anticipate this Parliament will see a
review of the Regulation of Investigatory Powers Act 2000, which currently
regulates much of the Government’s surveillance powers. The Independent
Reviewer of Terrorism Legislation, David Anderson QC, has conducted an
independent review of the operation and regulation of investigatory powers,
with specific reference to the interception of communications and
communications data. The report of that review has been submitted to the Prime
Minister, but has yet to be made public: when it is made public, parliamentary
scrutiny of the report and any recommendations made following it will be
essential.

As the
law requires that surveillance powers must be employed proportionate to any harm
to privacy caused (as required by Article 8 of the European Convention on Human
Rights and Article 12 of the Universal Declaration of Human Rights) we believe
that any expansion or change to the UK’s surveillance powers should be proposed
in primary legislation and clearly and accurately described in the explanatory
notes of any Bill. The Bill and its consequences must then be fully and frankly
debated in Parliament. When reaching an assessment of the proportionality, of
any measure that restricts rights, both our domestic courts and the European
Court of Human Rights place great stock on the degree and quality of
Parliamentary involvement prior to any measure being adopted. If the matter
ever came to before the courts one issue examined would be the nature of any
“exacting review” undertaken by MPs into the necessity of extending these
powers. The Government should not be permitted to surreptitiously change the
law whenever it so desires, especially where such changes put our privacy and
security at risk.

This
letter has been prepared and signed by 35 academic researchers. We are
comprised of people from both sides of this issue - those who believe that
increased powers are a reasonable response to an emerging threat, and those who
think them an unjustified extension of state interference. Our common goal is
to see the Rule of Law applied and Parliamentary oversight reasserted. We are
calling on all members of the House of Commons, new and returning, and of all
political persuasions to support us in this by ensuring Parliamentary scrutiny
is applied to all developments in UK surveillance laws and powers as proposed
by the current Government.